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Bill Before Congress Will Undermine Employee Freedom of Choice

Federal and State labor laws, in both the private and public sectors, currently protect the freedom of employees to choose whether they want to be represented by a union or don't want to be represented by a union.  Based on its experience, the National Labor Relations Board has concluded that the best way to protect employee freedom of choice is through secret ballot elections to determine whether or not employees want to be represented by a union.

Currently, the NLRB is committed to maintaining high standards in the conduct of its secret ballot elections.  Its objective is to provide conditions that "enable employees to register a free and untrammeled choice for or against a bargaining representative."[1]  Those "laboratory conditions" include strict impartiality, no campaigning in the election area, no company officers or union representatives in the voting area, strictly guarded secrecy of the ballots and balloting process and sweeping rules against statements or conduct that would interfere with the employees' exercise of their freedom of choice.  However, the NLRB does permit both employers and unions to noncoercively inform employees of the facts. 

Unions apparently believe that, under the NLRB's election procedure, employers retain the ability to delay the procedure, and, through their propaganda, confuse or frighten employees into voting against unionization.  Unions also claim that even when a union wins an election, employers use the bargaining process to avoid or delay an agreement with the union.  Unions believe employees would be better off if they were covered by a collective bargaining agreement.  To accomplish that objective, unions want to eliminate the secret ballot elections as the procedure by which unions become the representative of employees and replace elections with a procedure that is more likely to ensure a unionized workforce.

Senator Edward Kennedy of Massachusetts and Representative George Miller of California have introduced the "Employee Free Choice Act" (S. 842 and H.R. 1696), a bill that would achieve the unions' objectives.  The sponsors want to create what they believe to be a more efficient system to enable employees to become represented by a union.

The "Employee Free Choice Act" would do away with secret ballot elections as the primary means for determining whether or not employees want to be represented by a union.  Instead, if a union can show that a majority of the employees in an appropriate bargaining unit signed cards authorizing the union to represent them, the NLRB must certify that union as representing those employees.  The Bill does not, however, contain any comparable provisions for employees who want to remove a union as their representative.  In other words, the Bill only facilitates an employee choice to become represented by a union and does not facilitate employee efforts to end that relationship.

The problem with the card check procedure is that authorization cards have been found by the NLRB, with court approval, to be a less reliable means for determining the true wishes of  employees.[2]  That's because the laboratory conditions required for valid secret ballot elections are largely not present when authorization cards are signed.  For example, (1) there is no impartiality in the card signing process since it is normally conducted in secret by union organizers who are skilled in persuading employees to sign authorization cards, (2) there is little control over what employees are told and what they are given to induce them to sign authorization cards, (3) employees have little opportunity to verify the accuracy of the union organizers' statements or to become fully informed on what their interests really are, (4) employees are not protected from being pressured by union representatives and other employees, (5) employees may be pushed to sign the cards in public, and (6) the other protections of secret ballot elections and freedom of choice are absent.

The Bill contains several other provisions that will help assure union success in their efforts to unionize nonunion employers.  Employers who are found to have discriminated against employees in an initial organizing context will have to pay double damages for back pay.  In addition, if an employer repeatedly or willfully violates the National Labor Relations Act, as amended, during a union organizing campaign, the employer will be subject to civil penalties of up to $20,000.00 for each violation.  Violations for which civil penalties could be imposed are not limited to discriminatory acts, and may include minor violations such as inadvertent comments by front line supervisors, improperly worded plant rules or unintended interpretations of a manager's speech or letter to employees.  In addition, the NLRB would be required to seek an injunction to force reinstatement of an employee allegedly discriminatorily discharged by an employer during a unionization campaign.

And, if an employer doesn't quickly agree to a labor agreement with a newly certified union, the employer will be forced to submit the determination of what should be in its initial labor agreement to a board of arbitration having essentially unrestricted discretion.  With that sort of leverage, the union would have little incentive to compromise its demands during negotiations.

The so-called "Employee Free Choice Act" will be a top legislative priority of unions this session.  If they are able to make it appear the bill has wide support, it may be hard to stop.  It will almost certainly be an issue in the upcoming elections.  If it is passed by Congress, it will have a dramatic impact on nonunion employers and employees.

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